Black Metropolis Research Consortium
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Prosecutors, Race, and the Criminal Pipeline
Get PDFThis Article presents evidence that some state prosecutors use their discretion to reduce racial disparities in criminal sentences. This finding challenges the prevailing view that prosecutors compound disparities. Given prosecutors’ positions as mediators in a sequential system, this Article analyzes how prosecutors respond to disparities they inherit from the past—and interprets their impacts in light of the accumulated disparities that already exist when they first open their case files. Specifically, I estimate how the sentencing penalty for prior convictions differs by defendant race using North Carolina state court records from 2010 to 2019. I find that the increase in the likelihood of a prison sentence for an additional prior conviction was 25% higher for white than Black defendants with similar arrests and criminal records. While Black and white defendants without criminal records were incarcerated at similar rates, white defendants with records were incarcerated at significantly higher rates. And the longer the record, the greater the divergence.
To understand this finding, I link an original survey of 203 prosecutors to their real-world cases. This survey-to-case linkage helps reveal how prosecutors’ beliefs about past racial bias influence their decision-making. I find that the subset of prosecutors who attribute racial disparities in the criminal legal system to racial bias have lower prison rates for Black defendants with criminal records than facially similar white defendants, thereby offsetting past disparities.
n concrete terms, racial disparities in North Carolina prison rates in 2019 would have increased by 20% had the state mandated equal treatment of defendants with similar case files. These findings should lead reformers to exercise caution when considering calls to limit or eliminate prosecutorial discretion. Blinding prosecutors to defendant race—a policy that jurisdictions are increasingly implementing—may inadvertently increase disparities by neutralizing the offsetting effects of some prosecutors. While race-blind charging ensures that prosecutors do not introduce new bias, it also ensures that any past bias is passed through to current (and future) decisions
Undefined “Ground”: Form or Substance in PTO Estoppel
Get PDFThis Comment seeks to resolve a dispute among district courts on how to interpret the term “ground” in 35 U.S.C. § 315(e)(2), the America Invents Act’s (AIA) estoppel provision. The question of whether a party that asserts a printed publication or patent in an inter partes review (IPR) proceeding is estopped from asserting real- world prior art, such as a device, in a later civil action under § 315(e)(2) has resulted in a district court split. Some courts have construed the estoppel provision narrowly, reasoning that because a physical object like a device is not something that could have been raised during IPR, estoppel cannot apply. Under this interpretation, “ground” is interpreted to mean a piece of evidence. Because physical products are not the same type of evidence offered during IPR, litigants are not estopped from using them in later civil actions. On the other side of this, courts have determined that estoppel can apply, but does not in situations where the physical object being raised is either “superior and separate” or presents a “substantive difference” to the paper prior art raised in IPR. Here, “ground” is interpreted to mean argument, such that estoppel applies when the device offers no arguments other than those already put forth during IPR—in other words, when litigation would be duplicative. The resolution to this question carries significant consequences for the cost, efficiency, and institutional division of labor of the patent system.
This Comment argues that the AIA’s text and purpose support adopting the substantive difference approach. This approach strikes a workable balance in focusing on the legal arguments to ensure that litigants are not unduly relitigating the same arguments already decided by the Patent Trial and Appeal Board (PTAB). The substantive difference approach also advances the AIA’s purpose in offering IPR as a cheaper, faster alternative to district court litigation. It also promotes a reasonable division of responsibilities between the PTAB and district courts. Overall, as this Comment explains, this interpretation best aligns with the patent system’s goal
Constrained Income Redistribution and Inequality: Legal Rules Compared to Taxes and Transfers
Get PDFA widely accepted result, associated with Louis Kaplow and Steve Shavell, is that it is more costly to use legal rules to redistribute income than to use the tax and transfer system (the income-tax only result). An assumption behind this result is that if a legal rule is changed to eliminate its income-redistributive effects, the tax and transfer system can be adjusted to counteract the effects of those changes on the distribution of income. A number of commentators have questioned this assumption, suggesting that political constraints may limit the ability of the tax and transfer system to adjust to changes in legal rules. They conclude that legal rules should sometimes, or always, be designed to redistribute income. Building on this critique, this paper considers how adding political constraints on redistribution changes the income-tax only result. After examining what we know about the effectiveness of the tax and transfer system in redistributing income, the paper considers a political constraints that limit adjustments to the tax and transfer system, in each case examining the implications for the income-tax only result. It concludes that adding political constraints strengthens rather than weakens the result. There are two key considerations. First, legal rules may be regressive as well as progressive. To the extent that the wealthy control the political system and seek to redistribute wealth upwards, allowing the use of legal rules may make it easier for the wealthy to do so because redistribution using legal rules is less transparent than redistribution via the tax system. Second, allowing the use of legal rules to redistribute may lead to tit-for-tax strategies when coalitions change, with coalitions that favor less redistribution enacting regressive legal rules and coalitions that favor more redistribution enacting progressive legal rules. The net result is a loss in the effectiveness of legal rules with unclear effects on the distribution of income. The income-tax only approach mitigates this effect
Real-World Prior Art
Get PDFThe most fundamental requirement of patent law is that a patented invention must be new. Given the longstanding, foundational nature of this novelty requirement, one might expect its contours to be well settled. And yet some of its most basic aspects remain unresolved. At the center of these unresolved issues lie what we term “real-world prior art.” In patent law, prior art is something that predates an invention and may render it not new. “Real-world” prior art activities involve using or selling real-world embodiments of the invention. Consider a few examples. Suppose Aleida demonstrates her invention to members of the public but does not allow them to touch it. Has she put the invention into “public use,” thus preventing others from obtaining a patent? Does it matter whether someone viewing her demonstration could learn how to make and use the invention? Suppose Aleida keeps her invention secret but uses it to provide a commercial service. Has she put the invention into public use, or placed it “on sale”? Or suppose Aleida offers her invention for sale to Charlise, who declines to purchase it. It is black-letter patent law that after one year passes, Aleida cannot patent this invention. But imagine that Bruno independently develops the same invention—can he obtain a patent?
These questions are not outlandish law school hypotheticals—they are central issues surrounding whether an invention is or is not novel. Yet litigation over these issues has resulted in conflicting outcomes and contradictory explanations, leaving lower courts and the Patent Office to flounder in applying these doctrines. In this article, we sort through this conceptual confusion. We suggest both doctrinal and institutional changes that would elucidate an area of law that is likely to grow in importance. And we argue that the value of resolving these questions runs much deeper than determining the answer to particular cases. The answers to these questions depend upon—and reveal—the conceptual superstructure of patent law. They implicate patent law’s most central questions: What does it mean for an invention to be new and thus patentable? What policy interests is patent law attempting to achieve, and whose interests does it aim to protect? And what are the conditions under which a party has forfeited the opportunity to obtain a patent? By addressing these issues, we endeavor to place the entire jurisprudence of patent novelty on more solid footing
Bringing Up the Bodies
Get PDFAllow me to begin with a scene from one of my favorite novels of the last twenty years. The novel is Hilary Mantel’s Bring Up the Bodies, 1 the second in her award-winning trilogy of historical novels about Thomas Cromwell and King Henry VIII.2
By the start of Bring Up the Bodies, King Henry VIII has had his first marriage annulled and is now married to Anne Boleyn. Indeed, Anne Boleyn is pregnant, and the king is optimistic about a male heir. But the king already has eyes on Jane Seymour, and when Anne Boleyn miscarries, the king is determined to rid himself of her. This proves easier said than done, until the king and Cromwell hatch a plan to show Anne has been unfaithful. By the end of the novel, Anne Boleyn has been arrested, as have several of her suspected lovers. They are to be tried for treason. And it is only here, in the last pages of the novel, that the meaning of the novel’s title becomes clear. Here is the line: “The order goes to the tower, ‘Bring up the bodies.’”3 In the wording, it is as though the prisoners are already just that, bodies, dead men walking. It seems an afterthought that their names are added: “The order goes to the tower, ‘Bring up the bodies.’ Deliver, that is, the accused men, by name, Weston, Brereton, Smeaton, and Norris, to Westminster Hall for trial.”4
I open with this scene—and have used the title of Mantel’s novel as inspiration for the title of this essay—because it captures so much of what I hope to explore in these pages. We are used to thinking of convicted men (and women) as merely bodies, known by their inmate numbers, dressed in identical prison garb to strip them of individuality. But what interests me, and what I hope to explore, is how we reduce defendants to bodies long before a verdict is announced. Or, since we have become a system of pleas, well before a plea of guilty is entered.
For some readers, the idea that defendants—in a system that constantly extols the presumption of innocence, no less—are treated as just bodies will come as little surprise. Recently, when I was describing this project to a former New York City public defender, and telling him about Hilary Mantel, he responded that detained pretrial arrestees are referred to as bodies still, at least in New York criminal courts. It’s not uncommon, he told me, for prosecutors, and even judges, to use the term.5 “Are the bodies here from Riker’s yet? Let’s hope they didn’t forget any of the bodies.”
Beyond this, the fact that we are living during a time of mass incarceration— the emphasis on mass is deliberate—facilitates this reduction. We have grown accustomed to speaking in terms of numbers. For those of us who write about criminal justice, the recitation of numbers may even seem de rigueur. There are about 2.2 million people behind bars, several multiples of the incarceration rate just a handful of decades ago.6 Although we have about 5 percent of the world’s population, we have about 25 percent of the world’s incarcerated population.7 Indeed, by most measures we have one of the highest incarceration rates in the world.8 Beyond this, each year our jails cycle through approximately ten million people, the vast majority to await trials for nonviolent crimes.9 We are at a point where one in every three adults in America has a criminal record,10 and where for every fifteen persons born in 2001, one will likely spend time in jail or prison.11 And on and on. In a way, the numbers themselves become, well, numbing. Our eyes begin to glaze over. We may follow the trials of Kyle Rittenhouse, or Harvey Weinstein, or Derek Chauvin, or Elizabeth Holmes. But as for the millions of others who are convicted, or the more than ten million who shuffle through jails, including those exposed to and dying from COVID-19? Those undifferentiated defendants are just bodies. We speak of “assembly- line justice: robotically convicting defendants and imposing onesize- fits-all punishments.”12 One pictures defendants as bodies on a conveyor belt while police officers, prosecutors, and judges stand on either side keeping the bodies moving until they finally enter prison to be “housed.” Even defense lawyers work the conveyor belt, though we might call them “unwilling actors,” to borrow Robert Cover’s term.13 In any event, the destination remains the same: prison, or what I have elsewhere called “invisible cities.”14
So, for some readers, describing defendants as bodies may not seem new. What hopefully is newer—what hopefully will give readers pause—is the argument I want to make. And that argument, at bottom, is this: That perhaps counterintuitively, it is precisely the rules we have created to protect the rights of defendants that contribute to stripping them of individuality. Put differently, the reduction of arrestees to bodies becomes possible—I am tempted to say becomes perfected—by rules we have come to think of as pro-defendant.
To make this argument, I begin in Part I by setting forth the numerous ways we reduce arrestees to bodies. Much of this process, I argue, is accomplished by prodding, encouraging, and even coercing arrestees to remain silent.15 Mute. Think of Miranda “rights.”16 You have the right to remain silent. Anything you say can and will be used against you in a court of law. In fact, this encouragement to sit silently, and stand silently, and simply be silent permeates every stage of the criminal process. It happens upon arrest and continues through each pretrial hearing. It certainly continues throughout any trial. And it continues, in many ways, post-conviction—through sentencing and appeals and beyond. It is so pervasive that a visitor from another planent—or for that matter a visitor from a civil law country17—might be tempted to ask, “Can the subaltern speak.”18
For me, this prompts two further questions. First, what happens when we silence defendants? Second, what do we lose when we silence defendants? Part II takes up these questions and attempts to answer them. But really, the goal of Part II is to gesture towards a better system, one where defendants are allowed, even encouraged, to speak. And in which we are encouraged to listen
Coordinated Rulemaking and Cooperative Federalism’s Administrative Law
Get PDF“Cooperative federalism” is not just a model of federalism; it is a model of administration. From health care to air quality to emergency management, transportation, immigration, national security, and more, cooperative federalism is the regulatory model of choice. But scholars have yet to conceptualize a cooperative administrative law for cooperative federalism. As this Article shows, however, federal and state bureaucracies have devised intricate strategies for coordinating their implementation of the programs they jointly administer.
The Article begins to elaborate cooperative federalism’s unseen administrative apparatus by focusing on its distinctive form of legislative rulemaking, the workhorse of administrative law. I show that inside cooperative programs, federal and state agencies jointly promulgate binding legislative rules through a cross-governmental process I call “coordinated rulemaking.” Because it crisscrosses governmental boundaries, this novel form of rulemaking has a legal logic, process, and mode of codification that diverges from the notice-and-comment rulemaking model so scrutinized within the federal administrative state.
After documenting the use of coordinated rulemaking in some of our largest and most important cooperative regulatory programs—including Medicaid, the Clean Air Act, public education, highway construction, and national-security surveillance, among many others—I argue that these rich practices resist the standard heuristics used to conceptualize the administrative relationship between the federal government and states within cooperative programs. In their place, I develop an alternative conception of the administrative scaffolding in cooperative federalism programs. Finally, I sketch out some of the puzzles and promises of coordinated rulemaking—its implications for black-letter administrative doctrines, including Chevron deference, arbitrary-and capricious review, and the like—and, by setting the practice I document here in theoretical frame, asking what it reveals about how federalism reshapes the legal architecture of administrative law when our governments pursue regulatory projects together
Does Voluntary Financial Disclosure Matter? The Case of Fairness Opinions in Mergers and Acquisitions
No full textWe use the shifting nature of Delaware’s disclosure requirements for fairness opinions in tender offers to assess the impact of voluntary versus mandatory disclosure. To do so, we obtain the disclosures of details in fairness opinions by the targets of over 900 tender offers from 1995 to 2019. Over this period, the disclosure regime for tender offers transitioned from a voluntary one to a mandatory one. We document that the disclosure rates of details in fairness opinions are low under voluntary rules and rise steadily as Delaware courts became increasingly insistent on the disclosure of these details. We also show that proshareholder changes to tender offers are associated with disclosure of tender offer details only under the voluntary regime. These results highlight the complexity of predicting the effects of disclosure rules and provide empirical support for theoretical work that argues that mandatory-disclosure regimes can narrow opportunities to signal
Decarcerating Immigrant Detainee Medical Care: A Path to Doctrinal Redemption
Get PDFGovernment detention is a quid pro quo: the government may deprive persons of their physical liberty, but in exchange, it owes them a level of care. The critical question is, how much care does the Constitution require the government to provide? In a series of federal judicial decisions (collectively, the detainee medical care doctrine), courts have found that the Constitution requires different standards of care for different classes of government detainees. These courts’ standard of care for immigrant detainees is erroneous. Modern U.S. immigration detention’s descriptive resemblance to criminal confinement has prompted courts to (wrongly) find that immigrant detainees are constitutionally entitled to the same standard of medical care as pretrial criminal detainees. Yet, the constitutionally civil status of immigration detention distinguishes it from pretrial criminal detention in doctrinally salient ways such that the Constitution entitles immigrant detainees to a higher standard of medical care. This Comment charts a path to conforming the immigration detention jurisprudence within the doctrine to what the Constitution requires by answering this question of law, which was recently unsettled by the Supreme Court’s 2015 decision in Kingsley v. Hendrickson and the Fourth Circuit’s 2021 decision in Doe 4 ex rel. Lopez v. Shenandoah Valley Juvenile Center Commission: What adjudicatory standard should govern immigrant detainees’ claims of constitutionally inadequate medical care? After devising a doctrinal test and applying it to immigrant detainees, this Comment concludes that the Constitution entitles them to “medical professional judgment”: medical care must not substantially depart from accepted medical standards
